Date: 20030523
Docket: T-546-03
Citation: 2003 FCT 645
Ottawa, Ontario, this 23rd day of May, 2003
Present: THE HONOURABLE MR. JUSTICE SIMON NOËL
BETWEEN:
GLEN E.P. KEALEY
Plaintiff
and
HER MAJESTY THE QUEEN, THE JUSTICE MINISTER
OF CANADA, JOHN VAISSI NAGY, THE ATTORNEY GENERAL
OF CANADA, MORRIS ROSENBERG, THE MINISTER
OF HUMAN RESOURCES DEVELOPMENT CANADA, PAUL MIGUS,
SUSAN WILLIAMS, THE PRIVACY COMMISSION OF CANADA,
GEORGE RADWANSKI, GERALD NEARY
Defendants
REASONS FOR ORDER AND ORDER
[1] This is a motion by the moving parties, The Privacy Commission of Canada, George Radwanski and Gerald Neary, to strike out the Statement of Claim as against the said moving Defendants which was to be dealt with in writing without the appearance of counsel pursuant to Rule 369(1) of the Federal Court Rules.
[2] The Plaintiff represents himself and upon receipt of the motion record, the said Plaintiff responded briefly in a one page letter by saying that he was a non-lawyer and that the motion record confirms that there was a criminal conspiracy against him which involves the moving parties.
[3] Pursuant to Rule 369(4) of the Federal Court Rules, 1998 and because of the importance of the motion, the consequences on the Plaintiff claim, the limited response forwarded, it was felt that an oral hearing would be in the interest of justice.
[4] The moving parties raised up the following issues:
- Does the Court have jurisdiction against the moving parties;
- Does Section 67 of the Privacy Act, R.S.C. 1985, c. P-21 preclude the Plaintiff's claim against the moving Defendants;
- Should the Statement of Claim be struck on the basis that it discloses no reasonable cause of action against the moving Defendants and is scandalous, frivolous and vexatious;
- Is the Statement of Claim an abuse of the Court's process since the exclusive scheme in the Privacy Act is the sole remedy to obtain the personal information he seeks;
[5] The Statement of Claim does not contain any facts supporting the allegations of conspiracy being made against the moving parties, and it is a well known jurisprudential principle that if no facts are alleged, no reasonable cause of action can be identified. (See Vojic v. M.N.R., [1987] F.C.J. No. 811 (Fed. C.A.).
[6] The whole of the Plaintiff's claim against the Privacy Commission is contained in paragraph 18 of the Statement of Claim:
"The Plaintiff made a request from the Privacy Commissioner of Canada, to assist him in obtaining the name of the medical practitioner who had rendered this so-called 'diagnosis' without ever having bothered to meet with the Plaintiff, or to perform any medical examination. To this date the Privacy Commission has not provided the Plaintiff with the name of the medical practitioner, nor in the absence of one, to publish a clear 'finding' stating that in fact that no medical practitioner had ever rendered such a 'diagnosis' and that, therefore, a reasonable person could conclude that there had existed a broad conspiracy by the above-named co-conspirators; whose sole purpose has been to falsify the medical records of the Plaintiff, in order to libel and discredit the Plaintiff himself. To the contrary, the Privacy Commissioner has written to the Plaintiff after publishing a so-called finding that falsely claims to have resolved the Plaintiff's request."
[7] As it appears, the Plaintiff makes a general assertion of conspiracy for falsifying medical records but without presenting facts to support such allegation.
[8] This approach does not prove conspiracy since to successfully plead an action based on conspiracy, a party must be able to prove the following:
- The existence of an agreement between two or more persons to injure the Plaintiff;
- The means, lawful or unlawful, used by the Defendants to injure the Plaintiff;
- The damage to the Plaintiff;
(See [1983] 1 S.C.R. 452">Canada Cement Lafarge Ltd. v. British Columbia Lightweight Aggregate Ltd., [1983] 1 S.C.R. 452 at 471-472).
[9] The Statement of Claim is completely silent of any facts which could normally support an allegation of conspiracy against the moving Defendants. As an example, there is no allegation of an agreement nor of the means used to carry out the said conspiracy and the causal relationship between the effects of the conspiracy and the damages of $55 million being claimed. The claim only sets out a general allegation without any factual support. On this ground, the Statement of Claim can be struck. (See Pellikaan v. Canada, [2002] 4 F.C. 169 (Proth.) at par. 28 to 30).
[10] There are also other grounds which supports an Order to strike the Statement of Claim.
[11] For instance, Section 67 of the Privacy Act precludes the claim against the moving Defendants. Unless bad faith (which is not factually supported in the Statement of Claim) can be proven, there is a statutory immunity given to the Privacy Commission and persons working for it. On this ground, the Statement of Claim can be struck.
[12] Furthermore, if he was not satisfy with the answer provided for by the office of the Privacy Commission, the Plaintiff could have filed an originating application to this Court. Section 41 of the Privacy Act provides a legal procedure to any individual who has been denied access to personal information for a review of that decision by the Federal Court. Instead, the Plaintiff decided to file a Statement of Claim in damages against the moving Defendants even though a statutory immunity clause existed and a specific legal procedure was at his disposal. It can be successfully argued that issuing a Statement of Claim under such circumstances can be associated to an abuse of process.
[13] After having been duly informed of the grounds of the Motion and the consequences on the Statement of Claim by counsel for the Defendants and by the Court, The Plaintiff, at the oral hearing, was invited to respond. He did address the Court but was unable to substantiate factually any of his allegations. He could not respond successfully to the argument of statutory immunity contained in Section 67(1) of the Privacy Act nor could he give to the Court valid reasons for not having used Section 41. As a matter of fact, the Plaintiff confused the situation even more in a lengthy verbal presentation when he raised a new allegation of a conspiracy against humanity.
[14] Having read the submissions and heard the oral arguments of both parties, this Court has
no other choice than to strike the Statement of Claim against the moving Defendants.
[15] Since no cost were requested, I will not grant any.
ORDER
THEREFORE, THIS COURT ORDERS THAT:
The Order striking out the Statement of Claim in Federal Court file no. T-546-03 as against the Privacy Commission of Canada, George Radwanski, Gerald Neary is granted.
"Simon Noël"
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-546-03
STYLE OF CAUSE: GLEN E.P. KEALEY v. HER MAJESTY THE QUEEN ET AL.
PLACE OF HEARING: OTTAWA
DATE OF HEARING: MAY 15, 2003
REASONS FOR ORDER : THE HONOURABLE MR. JUSTICE S. NOËL
DATED: MAY 23, 2003
APPEARANCES:
MR. GLEN E.P. KEALEY FOR PLAINTIFF ON HIS OWN BEHALF
MR. DOUGALD BROWN FOR DEFENDANTS - PRIVACY COMMISSION, GEORGE RADWANSKI & GERALD NEARY
MS. SUZANNE PEREIRA FOR DEFENDANTS - HER MAJESTY THE QUEEN AND OTHERS
SOLICITORS OF RECORD:
MR. GLEN E.P. KEALY FOR PLAINTIFF ON HIS OWN
Kemptville, Ontario BEHALF
NELLIGAN, O'BRIEN PAYNE LLP FOR DEFENDANTS -
Ottawa, Ontario PRIVACY COMMISSION, GEORGE RADWANSKI & GERALD NEARY
MORRIS ROSENBERG FOR DEFENDANTS - HER
Deputy Attorney General of Canada MAJESTY THE QUEEN AND OTHERS
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